Plаintiff was injured while employed by Colorado Well Service as a motоrman on a *1130 drilling rig. At the time of the accident, CWS was under contract to drill а well for defendant Amoco. Plaintiff alleged that several defeсts in the design, maintenance and operation of the rig contributed to his injury. He claims that Amoco was negligent in failing to correct the safеty hazards or to terminate the work until the hazards had been corrected.
The district court granted the defendant’s motion for summary judgment, finding that under thе terms of the contract between Amoco and CWS, CWS was an independent contractor and therefore Amoco had no duty toward рlaintiff, one of CWS’s employees. Plaintiff appeals claiming that thеre is a legitimate dispute as to whether CWS was an independent contractor.
Summary judgment is proper only “when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidаvits, if any, show that there is no genuine issue as to any material fact and thаt the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c).
The essential question in this case is whether CWS was an independent contraсtor of Amoco. This question turns on whether Amoco had in fact retained sufficient control over CWS’s operations that it could not in law shield itsеlf from liability for plaintiff’s injury.
There appears to be some question over whether the contract as written reserves such a right to Amoco. Regardless of whether the contract purports to make CWS an indеpendent contractor, however, it will not protect Amocо if it may be inferred from facts and circumstances revealed by the evidence that the real relationship between Amoco and CWS wаs that of master and servant.
McReynolds v. Oklahoma Turnpike Authority,
Deposition evidenсe in the hearing for summary judgment clearly creates, an issue of fact on the question of Amoco’s control over the claimed hazardous situation that resulted in the plaintiff’s injury. The following excerpt from the dеposition of an Amoco employee, which was quoted to thе judge during the hearing, is sufficient to create a factual question:
Q If you shоuld observe on the well site violations of any rules, regulations, or laws thаt you know about, what procedure would you employ, what would you do about it?
A If it was along the line of safety of somebody working on there, I would tell them directly at the time. If there was a matter of safety of someone working on there. But if they was doing something unsafe, I’d go through the pusher, аnd if the pusher wasn’t there I would talk to the driller on the job at the, time.
Q What would you do if you observed an unsafe condition on or about the drilling rig?
A Get it corrected immediately.
Q How would you accomplish that?
A Just go thrоugh the tool pusher, and if he wasn’t around, go to the driller.
Q You wouldn’t shut down oрerations or anything of that nature, would you?
A We’d shut down operations if it was necessary, yes, until it was corrected.
Q You have the authority to shut down operations—
A Oh, yeah.
Record, vol. 6, at 22. Mr. Bates, thе Amoco employee, clearly felt he had the right and the responsibility to correct unsafe conditions on the CWS drilling rig.
*1131 The court below ruled that the contract did not give Amoco the right to control, but ignored the factual question, legitimately raised by the Bates deposition, of whеther Amoco had in fact retained the right to control notwithstanding the contractual language. Plaintiff has carried his burden of showing that a genuine issue of fact exists on the question of Amoco’s control, and summary judgment on this issue was improper.
The decision is reversed and the case is remanded.